Tuesday, July 31, 2007
An attorney who also served as an elected public official entered an appearence in a criminal case but did not appear for trial. The attorney had learned that the prosecutor intended to stet the case, advised the client and attempted unsucessfully to arrange for substitute counsel. The client wanted the deal and decided to proceed without counsel. The attorney was in another city for a legislative conference.
The trial judge issued a show cause and assigned a special prosecutor rather than sanction the attorney by means of summary contempt. The judge thereafter vacated the order and converted the matter into a summary contempt proceeding. The Maryland Court of Appeals held that "the court against which a direct contempt is committed can punish that contempt summarily at the time it is committed or immediately after the proceeding." If it does not, the court "foregoes its opportunity to proceed summarily." Thus, the trial court erred in imposing sanctions for summary contempt, requiring a remand.
I happened to see a reference in the New York Times this morning about Christine Lagarde, who has been appointed the Minister of Finance in the government of French President Nicolas Sarkozy. I met her a number of years ago at a general counsel symposium held by Baker & McKenzie in Chicago, when she was the global chairman of the firm.
Monday, July 30, 2007
An attorney who had failed to disclose that a prior employment was in her spouse's law office when applying for a position with a federal agency was suspended for 90 days by the Maryland Court of Appeals. The spouse provided a glowing reference and a competing employment offer. As a result, the attorney received a job offer at a higher starting salary than would have otherwise been given. The attorney did disclose the relationship on other documents "completed for purposes unrelated to [the attorney's] actual hire..."
When the non-disclosure was discovered, the agency did not take disciplinary action, but referred the matter for a bar investigation. However, the lawyer is no longer employed at the agency. The court held that "deceit can be based not only on overt misrepresentation but on concealment of material facts." The "concealment...impeded the ability of the [agency] to question and evaluate the bona fides of what was proferred as a competing offer." (Mike Frisch)
The Maryland Court of Appeals recently disbarred an attorney convicted on a plea of guilty to misprison of felony. The attorney had been employed as in-house counsel for an entity known as Global Recruitment and Immigration Services, Inc. He was aware of widespread forgeries on immigration documents, including forgery of his signature. He also was aware that the purported employer identified in hundreds of applications "did not have the capacity to hire such large numbers of immigrants." This had occured over a four year period.
The court noted that its precedents require disbarment for intentional dishonest conduct absent compelling extenuating circumstances. While the mitigation evidence presented was "commendable" it did not meet the standards for extenuating circumstances sufficient to avoid disbarment. (Mike Frisch)
An attorney who had been suspended in New Hampshire was also admitted in Massachusetts. The attorney failed to advise Massachusetts authorities of the suspension. As a result, the suspension was not given retroactive effect in Massachusetts. The opinion is linked here.
In an unrelated reciprocal discipline matter, the Massachusetts Supreme Judicial Court held that it was appropriate to increase the sanction over that imposed by the disciplining court (in this case the District of Columbia) where the misconduct warranted a greater sanction ("...our task is not to replicate the sanction imposed in another jurisdiction but, rather, to mete out the sanction appropriate in this jurisdiction.") The case involved neglect and failure to provide competent representation by a lawyer with a long disciplinary history. I am glad to see that I'm not the only person who thinks that D.C. is lenient to a fault for such misconduct. (Mike Frisch)
An attorney cannot comply with ethical obligations to a client if the attorney fails to recognize the existence of the lawyer-client relationship. An attorney was recently reprimanded by the Maine Board of Bar Overseers for misconduct in representing a client in a real estate matter where the lawyer contended that he had only represented the lending bank. The board found that "there [was] no question that, by an objective standard, that both the lawyer and client could and should reasonably understand and agree that [the attorney] had undertaken the representation of [the client]." The failure of the attorney to acknowledge this fact "made it impossible for him to meet or fulfill all of the other obligations which he owes to a client pursuant to the Maine Bar Rules." (Mike Frisch)
A doctor who had had his hospital privileges revoked brought suit against the hospital. One of the purported reasons for the hospital's action was that the doctor had failed to report a malpractice lawsuit against him and others. He acknowleged the non-report but asserted that he had followed the advice of his counsel in that regard.
After the malpractice case settled, one of the partners of the attorney who gave the advice left the firm. The departed attorney now represents the hospital in the revocation of privileges case. The attorney professes no memory of the maplractice case. The Texas Supreme Court ordered the attorney and his firm disqualified: "... even if the departing attorneys have no connection with a former client of a former firm, they cannot take on a case against that client if it involves questioning the validity of the earlier representation." Disqualification is required whether or not the attorney in the malpractice case admits giving the advice asserted by the doctor. (Mike Frisch)
Saturday, July 28, 2007
The Nevada Supreme Court issued a decision this week in the much-reported controversy between Chief Judge Hardcastle and Judge Halverson of the Eighth Judicial District of Clark County. The court interprets the pertinent rules relating to the authority of a chief judge. The court concludes that the chief judge acted within her authority in removing Judge Halverson from hearing criminal cases. However, the chief judge overstepped her authority by banning Judge Halverson from the courthouse.
Here is a link to documents relating to the litigation against the judicial discipline board initiated by Judge Halverson. One of her attorneys is former state bar president and respondent in the leading Supreme Court case concerning public comments by attorneys involved in pending cases, Dominic Gentile. (Mike Frisch)
A recent decision of the United States District Court for the Northern District of New York has enjoined enforcement of some aspects of the more restrictive bar rules concerning attorney advertising. The decision does not affect the rules relating to direct solicitation of victims in the wake of an accident. There is a discussion of the rules that relate to web sites and domain names. The court notes some concern about forms of advertising that are protected by the First Amendment: "Without question, there has been a proliferation of tactless, and at times obnoxious, methods of attorney advertising. New technology and an increase in the types of media...has exacerbated this problem and made it more ubiquitous...the public perception of the legal profession has been greatly diminished."
The president of the New York state bar has issued a press release in response to the decision. (Mike Frisch)
The Pennsylvania Supreme Court recently entered an order clarifying its policies regarding public access to information concerning bar discipline cases. Proceedings are open unless the issue is attorney disability rather than ethical misconduct. If public charges are dismissed or result in private sanction, the proceedings are then treated as confidential unless the accused attorney wishes the result to remain a matter of public record.
The court also has recently adopted rules to standardize pro hac admissions procedures.(Mike Frisch)
In a postconviction proceeding on behalf of defendant convicted of first degree murder, the Nebraska Supreme Court evaluated and rejected a conflict of interest claim. An attorney who had been associated with defense counsel (the court describes the arrangement as office-sharing, with the associate paying half of his earnings to the firm) accepted employment with the prosecutor's office. The prosecutor's office continued to handle the appeal until postconviction counsel learned of the conflict. A special prosecutor was then appointed. The court held that the departing attorney did not have any confidential information about the case. An actual, rather than potential or imputed conflict, is required to establish a basis for postconviction relief. (Mike Frisch)
Friday, July 27, 2007
In Minnesota, a lawyer who has been suspended or disbarred cannot be reinstated unless there is clear and convincing evidence that the former lawyer has "undergone such a moral change and to now render [the lawyer] a fit person to enjoy the public confidence once forfeited." In a case decided yesterday, the Supreme Court denied reinstatement to an applicant who had written numerous checks on insufficient funds while suspended for misconduct that had included findings of misappropriation and failure to properly maintain trust account records. (Mike Frisch)
Thursday, July 26, 2007
CINCINNATI -- Doctors here consulted botanists and forestry experts in the strange case of a man who has shown his age. . .by growing tree rings. Fifty of them as a matter of fact.
"I was just doing what my internist said I should do on turning fifty," said Paul L. Caron, Associate Dean of Faculty and the Charles Hartsock Professor of Law at the University of Cincinnati Law School. "I went in for the colonoscopy, and everything was copacetic from a polyp standpoint, but I appear to have grown fifty tree rings. My proctologist told me it was the first time he ever had to call in a tree surgeon for a consult. Personally, I was ashen."
Linguists were not surprised. The word annulus, or tree ring, derives not from the Latin anno for year, but shares its root with anus. "How appropriate for this to appear first during a colonoscopy," exclaimed Prof. Dr. F. Sigmoid Stammbaum of Humboldt University in Berlin.
Colleagues of Professor Caron also were not surprised, but most refused comment beyond snickering. "I'm not going out on a limb," barked one harried blog editor in the far-flung Caron empire. Another professor commented, "Most tax people are weenies, but Paul has really branched out, and managed not to sap himself in the process."
Caron is the editor of the wildly-poplar "Tax Prof Blog." He turns fifty today, July 27, 2007. His colleagues at LPB wish him a happy birthday and at least fifty more annuli.
[Assembled from wire service reports by Jeff Lipshaw]
A lawyer representing in passenger who had suffered minor injuries in a two car traffic accident sent a letter to the insurance company for the other driver that contained "fabricated testimony...from a nonexistent transcript" in which the driver purportedly admitted responsibility for the accident. The insurer did not rely on the false transcript and eventually settled the case.
The Ohio Supreme Court rejected the proposed stayed suspension recommendation of the Board of Commissioners on Grievances and Discipline and suspended the attorney for six months. The case was more serious than prior cases "involving inadvertence or haphazard corner-cutting." Despite significant mitigating evidence, an actual suspension was required in the case. Two justices dissented, favoring a suspended sanction.
Obviously, there is a world of difference between an actual and a stayed suspension. A suspension of any length can be devastating to a sole or small firm lawyer. Courts and boards throughout the country struggle with line-drawing fine distinctions in dishonesty cases in particular. I do favor the policy approach that actual suspension is necessary where the evidence establishes intentional dishonesty for advantage in a practice setting. That seems an appropriate bright line rule to me.
On the other hand, there were weighty mitigating factors: no previous discipline over a long career, full cooperation, no financial loss, and that the lawyer had "apologized and accepted responsibility for his misdeeds, which occurred during a stressful period, and he has established his excellent character and reputation apart from this one isolated incident of wrongdoing."
Cases like this one can be emotionally charged and difficult for disciplinary counsel as well as for the accused attorney. I have handled any number of cases, both involving dishonesty and neglect, where one would have to be a robot to have no sympathy for the lawyer. You watch someone sob on the stand as they admit their failings and shortcomings. After hearing every imaginable excuse (and a few you could not possibly imagine), you want to hug someone who actually owns up to the misconduct. For courts and boards, these can be the hardest cases.(Mike Frisch)
A lawyer represented a client in two breach of contract cases against The Christian Coalition of America, Inc. A key issue in the first case was whether a written agreement (which neither side had produced) contained an arbitration clause. On cross, the lawyer's client testified that he had located the agreement and given it to the lawyer. The lawyer immediately nonsuited the case, which then went to arbitration. The judge "strongly reprimanded" the lawyer for not disclosing that the document had been located and "contained the very arbitration provision he had previously denied existed." The court imposed monetary sanctions against the lawyer and his client.
The lawyer filed the second suit while the arbitration was pending. A motion to disqualify the lawyer on conflicts grounds was filed. The lawyer did not appear, the motion was granted, and the lawyer was directed to show cause why his license to practice in the Circuit Court should not be revoked. The lawyer then sent an email to the Coalition stating that their counsel was "certainly demonically empowered" and that the sanctions award was "an absurd decision from a whacko judge, whom I believe was bribed." After a hearing, the lawyer's license to practice in the circuit court was revoked.
On appeal, the Virginia Supreme Court affirmed the revocation, holding that the circuit court had inherent authority to revoke the license to practice before it, which did not amount to a revocation of the attorney's Virginia license. The lawyer also had been provided adequate notice of the alleged misconduct.
As a matter of disciplinary procedure, it is noteworthy that the circuit court order did not operate to suspend the attorney's Virginia license. The order referred the matter of potential bar discipline to the Virginia State Board (i.e. disciplinary counsel) and to the Supreme Court for possible reciprocal revocation. Presumably the attorney would be permitted to contest action against his Virginia license before losing his bar privileges. He is, however, barred from practice in Arlington County.
Wednesday, July 25, 2007
It seems like many of the most colorful disciplinary cases come from Louisiana. A Disciplinary Committee recently recommended a 36 month suspension of a lawyer who had been suspended on an interim basis as a result of a federal conviction for misprison of a felony "relative to a conspiracy to violate civil rights." The suspension would be nunc pro tunc to the date of the interim suspension.
The lawyer was trapped in the web of a now-disbarred judge. He was corporate counsel to a single client, who was embroiled in domestic litigation. The client owned restaurants ("Copelands"). The judge presiding in the domestic case wanted to do business with the client. The judge initiated ex parte contacts with the lawyer "to pursue a seafood supply contract" with the client. The lawyer refused to cooperate in providing the judge and his associate with seafood pricing information, which "created significant frustration by [the judge]." The lawyer had the pricing information but did not provide it. At the judge's request, the lawyer gave appetizers and refreshments at one of the client's restaurants to the judge's daughter for a birthday, as well as complimentary gift cards.
The lawyer was convicted of failure to report the conspiracy. He also "concealed the full extent of his knowledge when questioned by federal authorities." The committee was not entirely unsympathetic: "[The attorney] allowed himself to be a pawn. He was taken advantage of. He found it difficult to say no to a Judge, especially one who was presiding over his only client's case." (Mike Frisch)
New Jersey has enacted a Conflicts of Interest Law ("Act") that applies to former government attorneys. The Act imputes the personal disqualification of the lawyer to the firm, thus mandating disqualification notwithstanding compliance with New Jersey's version of Rule 1.11. A lawyer who had complied with the ethics rule sought an opinion "on whether the [rule] should prevail over the more restrictive mandates of [the Act]."
The New Jersey Supreme Court held that the Act "serves a legitimate governmental purpose and does not improperly encroach on judicial interests" and that New Jersey lawyers must comply with both the Act and the ethics rule. The court discusses the separation of powers issue and concludes that it should defer to the legislaure in this instance. There is an impassioned dissent based on the court's exclusive authority to regulate the practice of law. The dissent discusses the development of New Jersey's Rule 1.11 and states: "Nothing---absolutely nothing---has been presented to this Court to justify reneging on the common sense provisions of RPC 1.11(c)."
The majority referred the matter to its Professional Responsibility Rules Committee for a reevaluation of the revolving door rule and "to draft, for the Court's consideration, a proposed rule in harmony with [the Act]." (Mike Frisch)
The New Jersey Supreme Court recently decided a significant medical malpractice case involving the applicable standard of care, the "extent to which medical emergencies fall outside the doctrine of informed consent" and "whether post-surgical communications from a physician to the members of a patient's family may give rise to a fraud-based cause of action..." A question relating to the duty of candor to opposing counsel is briefly discussed at the conclusion of the opinion.
The defendant's expert had opined at deposition that the injury could have been caused in one of two ways. The expert advised counsel shorthy before trial that there was a single cause. While finding there was an obligation by defense counsel to advise plaintff's counsel of the material change, the change conformed to the plaintiff's theory and causation was conceded. Thus, the ethical lapse did not cause prejudice to plaintiffs. (Mike Frisch)
Tuesday, July 24, 2007
An attorney in Florida has requested an ethics opinion in circumstances where a divorce client has removed documents from the spouse's office without permission, improperly (by figuring out the password) accessed and printed email and documents, including attorney-client information, and removed documents from the spouse's car. The proposed opinion surveys cases and ethics opinions from other jurisdictions and concludes that the attorney must "discuss the situation, including the ethical dilemma presented by the client's actions, with the client [and] must inform the client that the materials cannot be retained, reviewed or used without informing the opposing party...If the client refuses to consent to disclosure, the inquiring attorney must withdraw from the representation." The Florida Bar is accepting comments on the proposed opinion through August 31. (Mike Frisch)
The Michigan Supreme Court recently decided to retain an administrative order entered last year that prohibits the "bundling" of asbestos-related cases for settlement or trial. The "purpose of the order is to ensure that cases filed by plaintiffs who exhibit physical symptoms as a result of exposure to asbestos are settled and tried on the merits of that case alone". Dissenters from the original order were highly critical of this approach to asbestos litigation: "This haste [to adopt the order] without sufficient information, is unrestrained and unwise." (Justice Weaver) "[The order] makes a mockery of due process...It virtually ensures that justice will be so delayed for many diseased plaintiffs that they will never live to see their cases resolved." [Justice Kelly].
In its order retaining the provision, Justice Corrigan states that, notwithstanding the above dire predictions, the order "has not caused the sky to fall." Justice Kelly responds: "Since this order was entered, we have received no indication that [its] objective has been even minimally attained." Rather, cases continue to be bundled for settlement, but without the benefit of court assistance. (Mike Frisch)